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Lawyers of Abd Al-Rahim Hussayn Muhammad Mr Al-Nashiri submitted representation to the International Criminal Court in the Hague in relation to the ICC Prosecutor’s request to the Court for authorization of investigation concerning the war in Afghanistan.

On 20 November 2017, Fatou Bensouda, the Prosecutor of the International Criminal Court in the Hague, requested the Court to authorize an investigation into alleged war crimes and crimes against humanity in relation to the armed conflict in the Islamic Republic of Afghanistan since 1 May 2003. This request covers also crimes that are linked to this armed conflict and were committed on the territory of other States Parties to the Rome Statute (the ICC’s founding treaty, to which Poland is a party) since 1 July 2002. According to the Prosecutor, the investigation, if authorized, should concern crimes allegedly committed by the members of Taliban and affiliated armed groups, members of Afghan authorities, as well as members of the US forces and of the CIA. The last category of crimes covers also secret detention and interrogation programme conducted by the CIA in Europe, including on the territory of Poland.

On 6 December 2017, Ahmad Assed, Nancy Hollander and Mikołaj Pietrzak, legal representatives of Mr Al-Nashiri, submitted on his behalf representation under art. 15(3) of the Rome Statute to the International Criminal Court in the Hague to support the Prosecutor’s request. Pursuant to art. 15(3) of the Rome Statute victims of crimes covered by the Prosecutor’s request for authorization of an investigation have the possibility to make representations to the Court. In such representations, victims inform the Court of their views and concerns relating to the possible investigation.

Mr. Al Nashiri is a Saudi national who was subjected to the CIA’s secret detention and interrogation programme intended for so-called “High Value Detainees” – captives from among the Al-Qaeda group suspected of terrorism. This programme consisted of a net of clandestine detention facilities located in Europe, including in Poland and in Romania between 2002-2006, which operated with their authorities’ acquiescence and secret connivance. In these so-called “black-sites” the HVD prisoners – including Mr. Al-Nashiri – were illegally detained and subjected to brutal interrogation techniques amounting to torture and inhumane or degrading treatment, which were developed by the CIA under Enhanced Interrogation Techniques programme.

Earlier in July 2014, the European Court of Human Rights (“ECHR”) held that Poland violated the European Convention of Human Rights and Protocol No. 6 to the Convention by participating in the extraordinary rendition and secret detention of Mr. Al Nashiri in a secret CIA prison on Polish territory and by failing to conduct a “prompt”, “thorough” and “effective” investigation into allegations of serious violations of the Convention, including torture, ill-treatment and undisclosed detention of Mr. Al Nashiri (Al Nashiri v. Poland, ECtHR, Judgement of 24 July 2014).

„The ICC may be the second international court after the ECHR that will adjudicate the case of persons who were detained and tortured by the CIA. Meanwhile, Polish authorities have been investigating the issue of the CIA rendition centers in Poland for almost ten years now, yet ineffectively. Throughout all this time persons who were unlawfully detained and tortured in the CIA rendition centers have had a limited possibility to seek justice.” – says attorney-at-law Mikołaj Pietrzak, who represents Mr. Al Nashiri.